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A Simple Question

This blog post can summarized by a simple question: Why do we delegate the reporting and indexing of the American legal information system to commericial vendors using a proprietary system?

Here’s the historical background/two minute summary I give to 1Ls and Pro Ses approaching legal research for the first time:

(And if you’re a law librarian, lawyer, or otherwise in the know about such things, feel free to skip the next 3 paragraphs)

America utilizes something called the common law system. That means, basically, that we rely upon courts to make our laws in addition to legislatures and regulatory agencies. They do this by either interpreting statutory laws and regulations or analyzing previous cases. It also means that that courts may have to follow the rulings of other courts depending on their geographic location and level of the court. Not every court case is available for review or “reported”…actually very few of them are and they are generally from Courts of Appeals or Supreme Courts. While there are very few reported cases, there are still thousands of cases appearing in hundreds of print volumes. I got a whole library full of ’em! The rise of electronic publishing means that there are even more “unreported” cases available.

So. How do we sort through these cases? Even if every volume of every reporter were indexed – which they’re not (Note 1) – it would take you forever and a day to find all the cases on your topic. Well, in the late 1800s, there was a man named John B. West who devised a system of organizing and classifying caselaw still used today called Key Numbers. Key numbers are awesome, they allow you to search more efficiently across jurisdictions and time periods – Hell, until relatively recently they allowed you to search at all – and if you should be so lucky to find a key number directly on your topic take a moment in your research process to pause and do a little victory dance because life just got a whole lot easier for you.

But you’re not done! If you find a case that says exactly what you could hope a case would say for your legal issue, you need to find out if it’s still valid. (A higher court or later court may have over turned it.) So you need to check with a system called Shepard’s Citations (available in print or electronically through Lexis) or KeyCite (available electronically through Westlaw). And then recheck all of the cases you find via these systems to make sure they’re valid. Finding statutes and regulations relatively easier than case law, but you still need to check if they’ve been “interpreted” via KeyCite or Shepards.

(BORING OVERVIEW OF CASELAW RESEARCH OVER)

KeyNumbers and Shepards are very useful and necessary products. My only problem with them is that they are “products” owned and sold by large commercial vendors who have a duopoly on accessing legal information – information that is owned and produced by the federal goverment (read: YOU THE TAX PAYER) and forms the very basis of our system of government. (Note 2) As I tell my students, we don’t pay borderline outrageous fees to Lexis and Westlaw for their information – we already own that. We’re paying it for their organization of it.

I think we’re finally at a point in history where the democratization of technology will allow it so that we (as in We The People as well as Legal Information Geeks) can take back our legal information from the vendors. The first steps are already in place. There’s Public.Resource.Org, Justia, and The Legal Information Institute (among others) harvesting what info they can and placing it up on the free internet. The second step is to get Law.gov (recently endorsed by the Mid America Law Library Consortium) up and running. The third step? We need to come up with an open indexing system. Raw data is great, but it’s just raw data. To truly be useful, we need to find a way to organize this information so that it will function within the American Legal System.

I am hopeful that if Law.gov comes to fruition, the government and/or civic minded computer geeks will find a way replicate the functions of KeyNumbers or Shepards (without violating Wexis’ intellectual property) so that Joe and Jane Q. Public can access this information without having to pay vendors. (And, on a selfish note, not to mention a side benefit of some healthy competition decreasing Wexis rates.) I also hope that AALL, SLA, ABA and other legal or information professional organizations become active participants in this process and ensure that issues like authentication are considered.

If you want to talk more about these issues, check out this Friday’s episode of The Law Librarian on Blog Talk Radio. Carl Malamud will be a guest to discuss Law.gov. You also can download it later as a podcast.

Notes:

1) A brief check in the reading room showed that some are. For example, U.S. Reports, published by the GPO. However, my library doesn’t have too many non-West reporters. These all have Key Number based indexes.

2) Legal information isn’t the only area where this is happening. Check out the recent documentary Food Inc to see how a significant portion of the American food chain is controlled by a couple of big companies.

4 comments for “A Simple Question”

I’m in rough agreement — and have alluded to this in connection with the ‘kerfuffle’ over Bob Berring’s recent remarks on a Thomson-Reuters blog. I’d quibble slightly in that I see the problem less with key numbers and citators being proprietary products in the first place – in fact, the commercial, for-profit creation of these systems was in important respects a great service to the legal community. Rather, I’d object to some of the later barriers to competitive entry (most especially West’s attempts to exercise copyright over pagination, and the enshrinement of commercially-published reporters in the widely-used citation systems) and attempts to convert past innovations in the print publication environment into walls against competition in the online information realm.

I also agree with you that the time may be nigh to think about what some kind of ‘open-indexing’ system would look like. The devil is in the details, of course (in particular, how would quality-assurance work?), but the idea has promise for at least some segments of the legal marketplace.